CHILD WELFARE - A MASSACHUSETTS WRONGFUL EMERGENCY REMOVAL?

Sabey v. Butterfield, Dist. Court, D. Massachusetts 2024:

"Joshua Sabey and Sarah Perkins are the parents of two young children who were removed from their home at 1:00 A.M. on a Saturday morning by the Massachusetts Department of Child and Family Services ("DCF") with the assistance of police officers from the City of Waltham. The forced removal took place without a warrant three days after an emergency room doctor discovered that the youngest child had two healing rib fractures, the cause of which was uncertain. Sabey and Perkins, individually and on behalf of their two children, brought suit against the City of Waltham, the four police officers who were present at the removal, and the DCF employees involved in the removal in their personal capacities. Both the DCF Defendants and the City of Waltham have moved to dismiss. After review of the briefing and oral argument, the Court ALLOWS the City of Waltham's Motion to Dismiss (Dkt. 39) and ALLOWS the DCF Defendants' Motion to Dismiss (Dkt. 30) with respect to Count VIII only; the latter motion is otherwise DENIED.

BACKGROUND

The facts below are taken from the Complaint and are assumed to be true.

I. Hospital Visit on July 12-13, 2022

At the time of the events, the older child ("C.S. 1") was three years old and the younger child ("C.S. 2") was three months old. On July 12, 2022, C.S. 2 began vomiting and developed a fever. At around 2:00 A.M., Perkins took him to the emergency room at Newton Wellesley Hospital with a 103.5 degree fever. Sabey remained home with C.S. 1. At the hospital, it was determined that C.S. 2 had low oxygen levels and a respiratory infection. In order to check his lungs for possible pneumonia, C.S. 2 was given an x-ray.

The x-ray revealed a healing rib fracture, which was estimated to be between ten days and six weeks old. This discovery prompted an internal hospital investigation. Perkins was informed of the fracture at 8:00 A.M. on July 13, and was questioned about the source of the injury. She responded that neither she nor her husband knew about the rib fracture and did not know what could have caused it. The hospital then ordered more detailed imaging and further testing of C.S. 2, including a full skeletal exam, which showed that the rib injury actually comprised two adjacent healing rib fractures. The hospital requested permission to conduct a brain scan, which Perkins initially declined. The brain scan did not reveal any cause for concern.

As part of the hospital investigation, social worker Jill Saks conducted interviews with Perkins at the hospital that day When pressed by the social worker to speculate, Perkins suggested that the injuries may have been caused by C.S. 2's short fall from bed several weeks before, which had not resulted in any apparent injury. Perkins denied any physical or substance abuse in the home. Hospital officials also spoke with the family's pediatrician, Dr. Kristen Haddon, who reported that she had no concerns about C.S. 2's safety and well-being. At the hospital's request, C.S. 1 was brought to the pediatrician to be medically cleared. After a thorough examination, the pediatrician found no signs of abuse, mistreatment, or injury. That same day, the social worker sent a report to DCF alleging physical abuse of C.S. 2 by his parents. The report outlined the injuries to C.S. 2's ribs and stated that Perkins's "affect" was "flat" and that she "rolled her eyes" when questioned. The report also indicated that the rib fractures were not consistent with a fall from a bed.

Shortly after receiving the report from the hospital, DCF sent emergency response workers Axel Rivera and Ana Piedade to the hospital to further investigate whether there were indications of abuse or neglect. The hospital officials informed them that, with the exception of the rib fractures, there were no signs of physical abuse, no signs of substance abuse, and that the family's pediatrician had told hospital officials that she had no concerns about the children's wellbeing. After speaking with hospital officials, Rivera and Piedade individually interviewed Sabey, Perkins, and C.S. 1. After the interviews, Sabey and C.S. 1 returned home while Perkins and C.S. 2 were required to stay at the hospital overnight. That night, Piedade and Rivera went to the family's home in Waltham, where they reported no concerns.

II. The Investigation Continues on July 14-15

The next morning, at about 9:30 A.M. on July 14, Rivera spoke with Dr. Haddon. Dr. Haddon reported no concerns and was surprised to hear of the injuries. Additionally, Dr. Haddon told Rivera that C.S. 2 was medically up to date and that his parents take him to monthly pediatrician visits, none of which had revealed any concerns of abuse, injury, or neglect. In addition to speaking with the family's pediatrician, Rivera also spoke with Dr. David Dominguez, who had completed the medical clearance on C.S. 1 the previous day. Dr. Dominguez reported no concerns with C.S. 1 Rivera also contacted the Waltham Police Department to request background checks on Sabey and Perkins. Their background checks showed that there had been no police calls to the home and revealed no concerns with either parent.

At about 3:00 P.M. on July 14, DCF officials allowed Perkins and C.S. 2 to leave the hospital and return home. That same day, around 5:00 P.M., Rivera spoke with Sabey over the phone about a safety plan for the family, which he subsequently emailed. The family agreed to sign the safety plan and to have a home visit on July 18.

Defendant Katheryn Butterfield, an Area Program Manager for DCF, was informed of the C.S. 2 investigation the following day, July 15. Soon after learning of the investigation, Butterfield ordered Rivera to go to the Sabey home and to provide her with an update after the visit. At about 5:15 P.M. that day, Rivera conducted an unannounced home visit. He spoke with the family, observed both children, and ultimately reported no concerns. Rivera reported that C.S. 1 "was walking around and was smiling," while C.S. 2 "looked presentable" while being held by his visiting grandmother. Dkt. 1 at 11. During this unannounced home visit, Rivera and the family agreed to also move forward with the previously scheduled July 18 home visit.

III. Removal of the Two Children

At 6:00 P.M. that same day, a Friday, after receiving confirmation from Rivera that he had completed his unannounced visit to the home, Butterfield made the decision to remove the children from the home. She made this determination based on the hospital's discovery of C.S. 2's healing rib fractures and not on any new evidence or information found during DCF's investigation. At approximately 8:00 P.M., Defendant Butterfield called Defendant Aaron Griffin, a supervisor with DCF, to discuss a plan for the removal. About an hour later, at 9:00 P.M., Defendants Carolyn Kalvinek and Bonnie Arruda, officers with DCF, were contacted and asked to proceed with the removal of the children from the home. After a conversation with Defendant Griffin to gather more information about the case and removal plan, Defendants Kalvinek and Arruda went to the Waltham Police Department ("WPD") station at around 12:30 A.M. to request assistance in removing the Sabey children. At approximately 1:00 A.M., Kalvinek and Arruda from DCF, together with three police officers from WPD — Defendants Anthony Scichilone, Elias Makrigianis, and Stefano Visco — arrived at the Sabey home.

The Sabey home was a rented ground-floor apartment in a shared building. It shared a common entryway, or breezeway, with a closed outer front door that faced the street and was usually locked. The family accessed their apartment through this front door since their apartment door was located just inside the front door within the breezeway. The stairs within the breezeway led to the upstairs tenants' apartment, but those tenants rarely used the front door and preferred to enter their unit through a separate external door. As a result, the family used the breezeway as an extension of their home, often locking the outer door and using the space to store personal property, such as car seats and strollers.

When the DCF and WPD officers arrived at the Sabey home, the police officers, Defendants Makrigianis and Visco, opened and entered through the outer front door into the breezeway. While standing within the breezeway, Defendant Makrigianis knocked on the inner door to the home. Sabey answered the inner door and asked the officials if they had a warrant; they informed him they did not. In response, Sabey refused to allow the DCF workers and WPD officials to enter the apartment, telling them to leave and return with a warrant or other court order. The officials remained on the property, including the breezeway, despite Sabey's repeated requests that they leave and return with a warrant or other court order. One police officer stood against the front outer door, intentionally jutting his elbow into the threshold to prevent any attempt to close the outer door. Another officer stood on the bottom step of the stairs within the breezeway, flanking the door to the home on the left.

Eventually, the police officers told the family that DCF was taking emergency custody of both children. None of the officials had any paperwork on them. Instead, they claimed repeatedly (and falsely) to have an "emergency order" that authorized them to take the children. Dkt. 1 at 16. Concerned about the lack of paperwork, Defendant Scichilone contacted his supervisor, Defendant Richard Couture, to seek guidance about the removal. Sabey called the family's lawyer, who then spoke with Defendant Couture and other officials from DCF and WPD. Defendant Couture and WPD officers informed the lawyer that if the parents did not surrender the children, then the officers would break into the home and seize the children by force. Faced with this alternative, the parents woke their children up and placed them, crying, into the DCF vehicle.

After removing the children at about 2:30 A.M. on Saturday, July 16, Defendants Kalvinek and Arruda placed them in the care of a foster parent. Later that day the children were placed in the care of their paternal grandparents.

The following Monday, July 18, at approximately 4:15 P.M., almost three days after the removal of the Sabey children from the home, DCF filed a petition with the Juvenile Court seeking permission to continue its custody of both C.S. 1 and C.S. 2. The court granted that petition, gave emergency custody of the children to DCF, and scheduled a temporary custody hearing.

The temporary custody hearing began on August 8, and lasted three days. At the conclusion of the hearing, temporary custody of the children was returned to their parents, subject to conditions. DCF proceeded with an almost four-month investigation, which ultimately failed to uncover any evidence of abuse, neglect, or maltreatment of the children by their parents. For the next three months the parents did not have full custody of their children.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the factual allegations in a complaint must "possess enough heft" to set forth "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 559 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addressing a motion to dismiss, the Court must accept all allegations in the complaint as true except legal conclusions. Id.

A preliminary issue is whether the Court should consider DCF's "Section 51B" investigative report of Sabey and Perkins, which was not annexed to the Complaint but was referenced in it. Defendants argue that the report, and certain audio recordings, should be considered. A court may consider the allegations contained in the complaint and materials "fairly incorporated into the complaint." Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir. 2004). Defendants point out that the Complaint refers to information in the report, particularly with respect to the sequence of events. They ask the Court to consider the eighteen-page report in its entirety, including conclusions by DCF that the injuries were nonaccidental. Though the report will likely be considered at summary judgment, I do not agree that it was fairly incorporated in its entirety into the Complaint. Defendants' reliance on Goodall v. Worcester School Committee is misplaced because the District Court there ultimately declined to rely on the extraneous exhibits. 405 F. Supp. 3d 253, 259-60 (D. Mass. 2019).

DISCUSSION

I. Claims Against DCF Defendants in Violation of Fourth and Fourteenth Amendments (Count I)

Plaintiffs allege in Count I that the DCF Defendants conducted an unreasonable search and seizure of their house and curtilage in violation of the Fourth and Fourteenth Amendments. They assert there were no exigent circumstances justifying the warrantless entry, that they did not consent to the search, and the entry was by threat of force. The DCF Defendants argue that exigent circumstances justified the warrantless entry.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The core of the Fourth Amendment is the right of a family to retreat into their own home and "there be free from unreasonable governmental intrusion." Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) ("But when it comes to the Fourth Amendment, the home is first among equals"). Absent exigent circumstances, the threshold of a home "may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 590 (1980). This protection includes the "curtilage" which is the area "immediately surrounding and associated with the home." Collins v. Virginia 584 U.S. 586, 592 (2018) (quoting Jardines, 569 U.S. at 6). The "Fourth Amendment requires government officials, including social workers, who go to a home to investigate reported child abuse or neglect allegations for the purpose of assuring the well-being of the child to obtain a warrant unless an exception to the warrant requirement applies." Goodall, 405 F. Supp. 3d at 273 (citing Andrews v. Hickman Cnty., 700 F.3d 845, 861 (6th Cir. 2012)).

The exigent circumstances exception to the warrant requirement applies when the exigency of the situation makes the need of law enforcement so compelling that a warrantless search is "objectively reasonable." Lange v. California, 141 S. Ct. 2011, 2017 (2021). For example, an officer may enter a home without a warrant to render emergency assistance to an injured occupant. Id. The exigent circumstances exception must be analyzed on a caseby-case basis by looking at the "totality of circumstances" confronting the officer. Id. at 2018.

In addition to the exigency exception, the First Circuit has held that an officer's entry into a home may be exempted from the warrant requirement under the so-called "special need" exception. See McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996). In McCabe, the First Circuit permitted warrantless entry into a home when police officers executed a "pink paper," which is an order authorized by a licensed psychiatric physician for involuntary commitment for a medical psychiatric examination. Where there is an "important administrative or regulatory purpose . . . which would be undermined systematically by an impracticable warrant or probable-cause requirement," no warrant is necessary Id. However, the First Circuit has declined to extend the special need exception beyond the "pink sheets" context. See Hill v. Walsh 884 F.3d 16, 22 n.2 (1st Cir. 2018).

Defendants' reliance on Wilmot v. Tracey is misplaced. In Wilmot the Court rejected a Fourth Amendment challenge to the warrantless entry into a home by DCF. 938 F. Supp. 2d 116, 128 (D. Mass. 2013) (involving a family member alleging ongoing physical and sexual child abuse). The key distinction is that the wife consented to entry of DCF. Id. at 137-38. Moreover, the court found that the warrantless entry into the home fell within the exigent circumstances exception because of the information of past and ongoing abuse. Id. at 138.

Here, Plaintiffs allege they did not consent and the entry at 1:00 A.M. was by threat of force. Though the youngest child was found to have two rib fractures, the injuries here were not new and were healing. The DCF investigation revealed that the children's pediatrician had no concerns about either child. The parents were cooperative at the home visit and the children seemed happy. Importantly, there was no warrant or court order — and plenty of time to get one. When all reasonable inferences are drawn in favor of the moving party, Plaintiffs state a viable Fourth Amendment claim.

As a backstop, the DCF officers contend that they are not liable for the alleged search and seizure because it was the police officers, not they, who entered the property. However, the First Circuit has held that in such circumstances liability may arise through a joint tortfeasor theory when each defendant has "intentionally engaged in a series of acts that would foreseeably result in some member of the team inflicting constitutional injury." Eldrege v. Town of Falmouth, 662 F.3d 100, 105-06 (1st Cir. 2011). According to the Complaint, the decision to remove the children was a team effort. It was made in the first instance by Defendant Butterfield. She discussed the case and the process of removal with Defendant Griffin, who in turn discussed the removal with Defendants Kalvinek and Arruda. Kalvinek and Arruda appeared with WPD officers at Plaintiffs' home without a warrant at 1:00 A.M. and took the children without a court order. At the very least, these alleged actions are enough to give rise to a plausible inference that each of the DCF Defendants understood that their affirmative actions would foreseeably result in a violation of the family's Fourth Amendment rights.

II. Unreasonable Seizure of the Children in Violation of the Fourth Amendment (Count II) and Deprivation of Parental Rights in Violation of Fourteenth Amendment (Count III)

The DCF Defendants move to dismiss Count II for unreasonable seizure of the children and Count III for deprivation of parental rights in violation of the Fourteenth Amendment.

"The interest of parents in the care, custody, and control of their children is among the most venerable of the liberty interests embedded in the Constitution." Hatch v. Dep't for Child., 274 F.3d 12, 20 (1st Cir. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). "As such, it is protected by the Due Process Clause." Id. However, "[i]n cases where the safety of the child is at risk, there are competing liberty interests, and so the parents' rights are not absolute." Suboh v. Dist. Att'y's Off., 298 F.3d 81, 91 (1st Cir. 2002).

Generally, "the question of what process is due involves weighing of the different interests of the child, the parents, and the state." Id. at 92 (citing Hatch, 274 F.3d at 20). Accordingly, "[d]ue process protects a parent's rights even when a state temporarily removes a child before obtaining a court order," and "the state may place a child in temporary custody only when it has evidence giving rise to a suspicion that the child has been abused or is in imminent danger." Id.

Defendants argue that DCF had a reasonable basis for believing removal was necessary. By statute, DCF may take a child into temporary custody when it "has reasonable cause to believe that removal is necessary to protect a child from abuse or neglect." Mass. Gen. Laws ch. 119, § 51B(e). By regulation, a "child may be immediately taken into custody if, after viewing the child, the Department's response worker finds reasonable cause to believe . . . [t]he nature of the emergency is such that there is inadequate time to seek a court order for removal." 110 Mass. Code Regs. § 4.29(2).

Here, an emergency physician diagnosed two broken ribs in a three-month-old boy. The ribs had been broken days or weeks before and were healing. The pediatrician saw no signs of abuse in either child. Defendants point to information in the 51B report which supported a reasonable suspicion that the broken ribs were a sign of child abuse in the three-month-old, but this information is outside the four corners of the Complaint and more properly addressed at summary judgment. Moreover, there is no information about child abuse concerning the three-year-old. When all reasonable inferences are drawn in Plaintiffs' favor, the Complaint states a plausible claim that DCF Defendants lacked reasonable suspicion of child abuse.

III. Claims Against DCF Defendants Alleging Violation of Article 14 of the Massachusetts Declaration of Rights (Counts VI, VII)

Plaintiffs assert constitutional claims under state law Count VI (unreasonable search and seizure of the house and curtilage in violation of the Massachusetts Declaration of Rights and Count VII (unreasonable seizure of the children in violation of the Massachusetts Declaration of Rights). To state a claim under state law, plaintiffs must plausibly allege that there was interference of their rights through "threats, intimidation, or coercion," which Defendants argue the Complaint fails to do. Bally v. Ne. Univ., 532 N.E.2d 49, 51-52 (Mass. 1989).

As alleged in the Complaint, Plaintiffs only handed their children over to DCF after being told that if they refused to do so, the children would be taken by force. Accordingly, Counts VI and VII have been adequately pled.

IV. Qualified Immunity

"Determining whether qualified immunity is available to a particular defendant at a particular time requires a trifurcated inquiry." Hatch, 274 F.3d at 20. First, it must be determined "whether the plaintiff has alleged the violation of a constitutional right." Id. Next, if a constitutional right violation is identified, then the Court evaluates "whether the contours of the right were sufficiently established at the time of the alleged violation." Id. This step consists of two subquestions: the Court must determine whether (1) "the contours of the right, in general, were sufficiently clear," and (2) if, under the specific facts of the case, an objectively reasonable official would have believed that the action taken or omitted violated the right at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014) (quoting Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)). These three inquiries are made in a sequence, "mindful that a single negative answer suffices to defeat the plaintiff's claim for damages." Hatch, 274 F.3d at 20.

Plaintiffs have alleged violations of constitutional right that are sufficiently established, the contours of which are clear, and which a reasonable official would understand themselves to be violating if they engaged in the alleged conduct: the Fourth and Fourteenth Amendment right to be free of warrantless searches in the home and seizures absent exigent circumstance, a court order, warrant, or consent; and the Fourteenth Amendment right to due process before the State impinges on the right to family integrity The Defendants vigorously assert that they had a reasonable belief that child abuse had occurred. However, the Court must draw all reasonable inferences in favor of Plaintiffs. Qualified immunity on all constitutional counts is more properly addressed at summary judgment when the court will consider a full record. Accordingly, DCF Defendants' motion to dismiss Count I is DENIED without prejudice.

V. Claims Against DCF Defendants Alleging Violation of the Massachusetts Privacy Act

The Massachusetts Privacy Act provides parties with a private right of action to defend against "unreasonable, substantial or serious interference" with privacy. Mass. Gen. Laws ch. 214, § 1B. Defendants argue that this claim should be dismissed because (1) the DCF Defendants are protected by the common law doctrine of immunity, and (2) because the DCF Defendants did not engage in "unreasonable, substantial or serious" interference with Plaintiffs' rights.

Common law immunity is broader than qualified immunity. "At common law, . . . a public official, exercising judgment and discretion, is not liable for negligence or other error in the making of an official decision if the official acted in good faith, without malice, and without corruption." Chaney v. City of Framingham, No. 18-10413, 2019 WL 6496842, at *7 (D. Mass. Dec. 3, 2019) (quoting Nelson v. Salem State Coll., 845 N.E.2d 338, 348 (Mass. 2006)). Though the Complaint alleges a substantial invasion of privacy, it does not allege that those violations were the result of bad faith, malice, or corruption. Accordingly, DCF Defendants' motion to dismiss Count VIII is ALLOWED.

VII. Monell Claims Against the City of Waltham for Violation of Due Process (Counts IV and V)

Municipalities become liable for the constitutional violations of their employees when those violations are attributable to a custom or practice of the municipality. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). Courts routinely require evidence of a pattern of similar past violations to support a municipal liability claim. See Connick v. Thompson, 563 U.S. 51, 62 (2011). When a Monell claim is pursued under a failure to train theory, "the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Id. at 64.

The Complaint does not allege any specific facts suggesting that the City of Waltham has any policy, custom, or established practice of depriving persons of their constitutional rights through illegal searches and seizures of the home (Count IV) or by stripping them of their parental rights without due process (Count V). Plaintiffs argue that their Monell claims are well pled because the egregiousness of the alleged constitutional violations demonstrates that either the police were conforming with an unconstitutional policy or established practice, or that the City failed to train the officers to respect Plaintiffs' constitutional rights.

These arguments are unavailing. The violations alleged — that the police officers, informed by DCF that there was reason for emergency removal, effectuated the removal — do not rise to the level of egregiousness that has allowed courts to infer Monell liability in the absence of allegations of specific failures to train. See, e.g., Connick, 563 U.S. at 63-64 (holding that a district attorney's office cannot be held liable under a § 1983 claim based on a single Brady violation). Accordingly, the City of Waltham's Motion to Dismiss Count IV and Count V (Dkt. 39) is ALLOWED.

ORDER

For the foregoing reasons, Defendants City of Waltham's Motion to Dismiss (Dkt. 39) is ALLOWED. The DCF Defendants' Motion to Dismiss (Dkt. 30) is ALLOWED with respect to Count VIII only, and is otherwise DENIED. The Court also denies the motion to dismiss based on qualified immunity.

SO ORDERED.

EMPLOYMENT LAW - IF THE UNION IS IMPROPERLY WITHDRAWING SUPPORT ON A VALID CLAIM

Jusino v. FEDERATION OF CATHOLIC TEACHERS, INC., 2024 NY Slip Op 50315,  - Sup Ct. Richmond Co, March 25, 2024:

"The plaintiff in this action, Ramon K. Jusino (hereinafter "Plaintiff"), was a high school theology teacher employed by Notre Dame Academy of Staten Island (hereinafter "NDA"), a Catholic high school. In this capacity, Plaintiff was a member of the Federation of Catholic Teachers, Inc. (hereinafter "Defendant"), the defendant in this action, which serves as a labor organization representing teachers employed by Catholic schools. Plaintiff commenced this action by filing a summons and complaint on August 10, 2023, wherein he asserted causes of action for breach of contract and unlawful discrimination.

Defendant argues herein that Plaintiff's claim for breach of contract must be dismissed as it was filed outside of the applicable statute of limitations (CPLR 3211 [a] [5]). Defendant further argues that Plaintiff's claims for both breach of contract and unlawful discrimination must be dismissed because the complaint failed to state proper causes of action (id. 3211[a][7]). Plaintiff filed opposition, to which Defendant filed a reply. Oral argument was heard on January 25, 2024, with Plaintiff appearing as an unrepresented litigant and Defendant appearing by counsel. The motion was marked as fully submitted, and the Court's decision was reserved.

Plaintiff's causes of action arise from the termination of Plaintiff's employment with NDA, which predicated arbitration pursuant to the collective bargaining agreement between Defendant and NDA, with Defendant retaining counsel for Plaintiff within the arbitration. Plaintiff contemporaneously filed an action against NDA in federal court, as an unrepresented litigant, asserting a claim of unlawful discrimination. Article XXIX of the collective bargaining agreement provides that "neither [NDA] nor [Defendant] shall discriminate against teachers on the basis of ... race, color, [or] national origin ..." In preparing for the arbitration, Defendant advised Plaintiff that its position would be based only on a "just cause" theory, and not include a discrimination claim similar to Plaintiff's position in his separate litigation. Plaintiff now seeks recovery for Defendant's refusal to pursue a discrimination claim which, he argues, amounted to discrimination in and of itself, and a breach of Defendant's collective bargaining agreement, whereunder Plaintiff was covered.

I. Plaintiff's Cause of Action for Breach of Contract

The Court will first address the issue of timeliness with respect to the cause of action for breach of contract. On a motion to dismiss a cause of action on such grounds (CPLR 3211[a][5]), a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (Wells Fargo Bank, N.A. v Burke, 155 AD3d 668, 669 [2d Dept 2017]). Within the verified complaint, Plaintiff asserted that the cause of action arose on May 17, 2019, when Defendant confirmed with the arbitrator that the hearing would be based upon the question of whether Plaintiff's employment was terminated for just cause, rather than unlawful discrimination. Defendant argues that the claim should be governed by the statute of limitations for a cause of action for a breach of duty for fair representation, which requires commencement within four months (CPLR. 217[2][a]; see Dolce v Bayport — Blue Point Union Free Sch. Dist., 286 AD2d 316 [2d Dept 2001]). Such a deadline would have expired on September 17, 2019, almost four years prior to Plaintiff's commencement of this action.

The burden then shifts to the plaintiff to "aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely" (Wells Fargo Bank, N.A., 155 AD3d at 669, quoting Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611 [2d Dept 2009]). "The plaintiff has the burden of establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" (Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d 1324, 1325 [2d Dept 2019], quoting Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844 [2d Dept 2014]). Plaintiff does not argue any of these factors but, instead, that this claim should be governed by the statute of limitations for an action concerning a contractual obligation, which is six years (id. 213 [2]), placing it comfortably within the statutory time for commencement. The Court disagrees.

The statute of limitations for an alleged breach of duty for fair representation applies to proceedings against an organization subject to the Public Employees' Fair Employment Act (Civil Service Law § 201 [5]) or the New York State Labor Relations Act (Labor Law § 701 [5]). Defendant is subject to the latter, as a labor organization "which exists and is constituted for the purpose, in whole or in part, of collective bargaining, or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection" (id.), despite the non-public employment of its members (see New York State Empl. Rels. Bd. v Christ the King Regional High Sch., 90 NY2d 244 [1997]). Plaintiff conceded as much in his verified complaint, wherein he stated, "Defendant ...is a labor organization as defined by the New York State Human Rights Law § 292(3), and the New York City Human Rights Law § 8-102."

Therefore, Plaintiff's cause of action for a breach of contract will be dismissed as time-barred. The Court will dispense with considering whether this claim should be dismissed under any other provision, as such a discussion would be academic.

II. Plaintiff's Causes of Action for Unlawful Discrimination

Defendant seeks dismissal of the discrimination claims based on Plaintiffs' failure to state a cause of action (CPLR 3211 [a][7]). In considering dismissal under this theory, the complaint should be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Initially, the sole criterion is whether the pleading states a cause of action, and if, from the pleading's four corners, the court discerns factual allegations that, when taken together, manifest any cause of action cognizable at law, the motion will fail (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Steve Elliot, LLC v Teplitsky, 59 AD3d 523 [2d Dept 2009], citing Guggenheimer, 43 NY2d 268).

With respect to the second and third causes of action in his verified complaint, Plaintiff alleges that:

"Defendant wantonly and willfully colluded with [NDA] by intentionally refusing to make any claim of retaliation on Plaintiff's behalf during the entire grievance and arbitration process. Defendant, in effect, aided and abetted [NDA]'s retaliatory conduct towards Plaintiff, squarely making Defendant a co-conspiring perpetrator of unlawful discrimination/retaliation against Plaintiff."

The New York State Human Rights Law identifies an "unlawful discriminatory practice" as any action by a labor organization to "... discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding..." (Executive Law § 296[1][e]).

The New York City Human Rights Law identifies an "unlawful discriminatory practice" as any action by a labor organization to "... represent that membership is not available when it is in fact available, or to discriminate in any way against any of its members ..." based upon "actual or perceived ... race, ... color, ... [or] national origin..." (NYC Admin. Code § 8-107 [1] [c]). The statute further identifies an "unlawful discriminatory practice" as any action to "retaliate ... against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint ... under this chapter, (iii) commenced a civil action alleging ... an unlawful discriminatory practice under this chapter, ... or (vi) provided any information to the commission pursuant to the terms of a conciliation agreement" (id. § 8-107[7]).

Both statutes further dictate that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this [provision], or to attempt to do so" (Executive Law § 296[6]; NYC Admin. Code § 8-107[6]).

To prove retaliation, Plaintiff would need to show that (1) he has engaged in protected activity, (2) his employer was aware that she participated in such activity, (3) he suffered an adverse employment action, and (4) a causal connection between the protected activity and the adverse action (Asabor v Archdiocese of NY, 102 AD3d 524, 528 [1st Dept 2013], citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312-313 [2004]). Under the circumstances alleged, it would be NDA's participation in discrimination that "serves as the predicate for the imposition of liability on others for aiding and abetting" a discriminatory practice (Santana v Yonkers City Sch. Dist., 2023 NY Slip Op 23386, quoting Murphy v ERA United Realty, 251 AD2d 469, 472 [2d Dept 1998]). Defendant may be held liable for aiding and abetting the discriminatory conduct if it "actually participated" in NDA's conduct that gave rise to the discrimination claim (see Valentin v Staten Is. Univ. Hosp., 2011 NY Slip Op 33343[U], 13-14 [Sup Ct, Richmond County], citing Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886 [2d Dept 2010]).

Plaintiff attached to his verified complaint, two emails from his counsel during the arbitration, dated September 23, 2018 and May 1, 2019, wherein said counsel informed Plaintiff that he was retained by Defendant solely on the issue of whether Plaintiff was terminated for just cause, and not on the issue of discrimination. In the body of the verified complaint, Plaintiff asserted that Defendant's decision to eschew the discrimination claim, despite the express prohibition against such conduct within the collective bargaining agreement, shows that Defendant "willfully colluded" with NDA in the alleged retaliation.

The Court finds that these factual allegations manifest a cause of action for aiding and abetting an unlawful discriminatory practice cognizable at law (Guggenheimer, 43 NY2d at 275; Executive Law § 296[1][e]; NYC Admin. Code § 8-107[1][c]; id. § 8-107[7]).

III. Decision and Order

Accordingly, it is hereby ORDERED that Defendant's motion is GRANTED to the extent that Plaintiff's first cause of action for breach of contract is hereby dismissed. Any items of relief sought by the motion that are not addressed herein are deemed to be DENIED."

DIVORCE - IF THE HOUSE CAN'T BE SAVED, SELL IT

JH v. CH, 2024 NY Slip Op 50220 - NY: Supreme Court, Putnam 2024:

"It is ORDERED that the applications are disposed of as follows.

The applications before the Court compel a re-examination of Kahn v. Kahn, 43 NY2d 203 (1978). There, the Court of Appeals held that real property owned by spouses as tenants by the entirety may not be ordered sold prior to entry of a Judgment of Divorce, as the tenancy cannot be severed in the absence of a judgment. Although tenancies by the entirety remain a part of the real property law of New York (see, EPTL §6-2.2), the nature and legal incidents of the union of person in husband and wife in marriage—upon which tenancy by the entirety is founded—have over the course of time been fundamentally altered.^[1] Moreover, the post-Khan adoption and evolution of the Equitable Distribution Law (DRL §236), "no fault" divorce (DRL §170[7]) and the Automatic Orders (DRL §236B[2][b]) have resulted in a significant adjustment of the legal criteria bearing upon the dissolution of marriage and its attendant economic ramifications. In consequence, the foundation on which Kahn v. Kahn rests has been significantly weakened if not destroyed.

FACTUAL BACKGROUND

The parties were married on July 12, 2003. They have two daughters, ages 14 and 8. The older child requires special attention due to medical conditions and learning disabilities. She will never be self-sufficient. For years, the parties enjoyed a relatively lavish lifestyle, maintaining an apartment in New York City in addition to a residence in Garrison, and sending their children to high-priced Manhattan schools. They did so based primarily on the income Defendant received from a manufacturing enterprise, and in part with financial assistance from Plaintiff's parents. Plaintiff opted to function as homemaker in part to provide care for the older child, although she is now employed in a sales position which affords her flexible hours and commission-based pay. Her 1099 Form for 2022 reflects compensation of $5,700. With the onset of the Covid pandemic the parties relinquished their Manhattan apartment, and they resided together with their children in the marital home in Garrison until the tension became too great. Plaintiff now lives with her parents and the children, and the parties share an access schedule. The marital home is occupied by Defendant. A foreclosure proceeding was commenced in 2019 and discontinued upon Defendant's payment of $40,000 in July 2019. However, Defendant having failed to make the August 2019 payment the mortgage is once again in default and foreclosure proceedings are once again pending.

Defendant thereafter sought a loan modification with Wells Fargo Bank. The proposed Modification Agreement lists both parties as "Borrowers."^[2] Plaintiff would be obligated on the proposed forty (40) year Mortgage but not on the Promissory Note. The new principal balance would be $881,988.50, with monthly payments of principal, taxes, and insurance totaling $5,441.36.^[3] The Bank's appraisal of the marital residence valued the property at $1,400,000. There is an outstanding mortgage with a current principal balance of approximately $900,000. Without mortgage payments for several years, the accrual of additional secured debt for past interest, property tax and insurance payments is substantial. In addition, there is a home equity line of credit in the amount of approximately $300,000 (as of June 2019), and substantial judgments exceeding $400,000 against Defendant including:

American Express (as of 4/9/21) $84,480.61

Cavalry SPV I, LLC, as assignee of Citibank (as of 9/28/20) $217,774.30

American Express (as of 1/11/23) $103,899.60

Although it is unknown whether any portion of the outstanding judgments has been satisfied, it is evident that the parties have little or no equity in the marital home. Defendant's Statement of Net Worth also lists credit card debts to Barclay's Bank in the amount of $108,046, to Bank of America in the amount of $99,049, to UBS Bank in the amount of $193,072, and to Wells Fargo in the amount of $49,747, but those debts, totaling $449,914, have not been reduced to judgment.

Defendant has been the primary source of family income during the marriage. However, there are open issues as to Defendant's income at the time of submission of this motion. He claimed a net income of $3,500 per week (i.e., $182,000 per annum), which suggests a gross annual income of approximately $250,000. There are a variety of issues arising from Defendant's business dealings and non-compliance with discovery issues. A forensic accounting has been ordered at an additional expense to the parties (see, NYSECF Docs. No. 271, 282). Defendant's Statement of Net Worth lists his monthly expenses as $25,263 (i.e., $303,156 per annum), an amount that exceeds his claimed income by approximately 100%. His monthly pendente lite maintenance payments have been sporadic in frequency and amount. There are child support arrears as well. He has been unemployed but claims "I am about to be hired in new employment and I expect I will be compensated at over 200K per year. I expect the job in the next 30 days. I just had my last interview" (NYSECF Doc # 289, ¶8). Although no details about his prospective employer, position, location, salary, or benefits were provided, Defendant now claims that he is employed at an annual salary of $150,000.

THE PENDING APPLICATIONS

Pending before the Court are Defendant's application for an Order directing Plaintiff to execute the proposed 40-year Mortgage and Plaintiff's application for inter alia an order directing the immediate sale of the marital residence. At the call of the calendar, the Court was prepared to set a briefing schedule, but as the deadline for acceptance of the mortgage modification was expiring, Defendant felt compelled to respond orally to the Plaintiff's motion. After Defendant and counsel were afforded the opportunity to review Plaintiff's papers the Court heard oral argument on both applications and reserved decision. There are two issues before the Court. First: May the Court, or should the Court, impose upon a divorcing couple a 40-year mortgage to preserve a marital asset that lacks any clear value? Second: May the Court in the face of Kahn v. Kahn order a sale of the marital residence held as tenants by the entirety in the absence of a Judgment of Divorce?

LEGAL ANALYSIS

I. The Circumstances Plainly Do Not Warrant A New 40-Year Mortgage

The Court is asked to compel Plaintiff to execute a mortgage in the hopes of saving an asset without value for a family with no known or apparent ability to afford additional debt. Defendant relies on the fact that Plaintiff was willing to do so in a prior foreclosure proceeding and claims that the circumstances are no different now. Defendant asserts such an order is necessary to prevent the dissipation "of the main asset of the marriage." Plaintiff's position is clear: "I do not want to have any financial ties with Defendant and his constant financial games and maneuvers" (NYSECF Doc. # 307, ¶6). Plaintiff further asserts she will be harmed by signing the Mortgage even without liability on the Note. The likelihood of a future default by Defendant will affect Plaintiff's credit and ability to secure housing for herself and her children, especially when Defendant is before the Court unemployed or recently employed, without income, and not paying child support. From counsel's statements, Defendant apparently anticipates that a new mortgage will take years to foreclose while he resides in the residence, leaving Plaintiff unable to move on with her life. It is difficult to find a cogent rational reason to support Defendant's request for a new 40-year mortgage on the marital home. The application is therefore denied.

II. The Pendente Lite Sale of the Marital Home: Revisiting Kahn v. Kahn

Any realistic assessment of the parties' situation would lead to the conclusion that the marital home must be sold to salvage any remaining equity or at least to reduce the financial loss. The equitable considerations supporting that conclusion were masterfully articulated by Justice Richard A. Dollinger in D.R.D. v. J.D.D., 74 Misc 3d 237 (Sup. Ct. Monroe Co. 2021) and in Harlan v. Harlan, 46 Misc 3d 1003 (Sup. Ct. Monroe Co. 2014). Per Kahn v. Kahn, however, the tenancy by the entirety arising from the parties' marriage impedes the Court from taking appropriate action pendente lite and prior to the entry of a Judgment of Divorce.

A. Kahn v. Kahn

In Kahn, the Court of Appeals addressed the question "whether, in a matrimonial action, a court may order the sale of real property held by the parties as tenants by the entirety, even though the marital relationship has not been legally altered." Id., 43 NY2d at 206. Concerning tenancies by the entirety, the Court observed:

In contemplation of the law, husband and wife were but one person. (Matter of Klatzl, 216 NY 83, 85). Thus, a conveyance to them by name was a conveyance to only one person. (Stelz v. Shreck, 128 NY 263, 266). Because of the marital relationship they were said to be seized of the estate in its entirety: each being seized of the whole rather than of any undivided portion. (Bertles v. Nunan, 92 NY 152, 156; Stelz v. Shreck, 128 NY, at p 266, supra; Hiles v. Fisher, 146 NY 306, 312). At death, the survivor took the estate not because of a right of survivorship, but because the survivor remained seized of the whole. (Bertles v. Nunan, 92 NY, at p 156, supra; Jackson v. McConnell, 19 Wend 175, 178; Stelz v. Shreck, 128 NY, at p 266, supra).

Kahn, 43 NY2d at 206-207. The Kahn Court continued, "[t]he common law soon recognized that in addition to death a legal dissolution of the unity of husband and wife would necessarily affect the continuing validity of a tenancy by the entirety." Id., at 207. The Court quoted this highly salient principle from Judge Peckham's opinion in Stelz v. Shreck, 128 NY 263 (1891):

When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical as well as plausible view to say that as the estate is founded upon the unity of husband and wife, and it never would exist in the first place but for such unity; anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity.

Kahn, 43 NY2d at 207 (quoting Stelz v. Shreck, 128 NY at 267) (emphasis added).

In Kahn, no legal alteration of the parties' marital status ever occurred: the wife's action for a separation was withdrawn and the husband's action for a divorce was denied. The Appellate Division nevertheless ordered a sale of the marital residence. Reversing, the Court of Appeals held that "unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety." Kahn, supra, 43 NY2d at 210. Interestingly, the Court distinguished Caplan v. Caplan, 38 AD2d 572, and Pearson v. Pearson, 34 AD2d 797, on the grounds that in each of those cases a separation had been granted, all the while recognizing that "a separation decree does not dissolve the marriage." See, Kahn, supra.

B. Tenancy By The Entirety and the Union of Person In Husband and Wife in Marriage

The grounding of the concept of tenancy by the entirety in the union of person in husband and wife in marriage was eloquently articulated by the Court of Appeals in Bertles v. Nunan, 92 NY 152 (1883):

By the common law, when land was conveyed to husband and wife they did not take as tenants in common, or as joint tenants, but each became seized of the entirety, per tout, et non per my, and upon the death of either the whole survived to the other. The survivor took the estate, not by right of survivorship simply, but by virtue of the grant which vested the entire estate in each grantee. During the joint lives the husband could, for his own benefit, use, possess and control the land, and take all the profits thereof, and he could mortgage and convey an estate to continue during their joint lives, but he could not make any disposition of the land that would prejudice the right of his wife if she survived him.

This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law and to society. In 1 Blackst. Com. 442, the learned author says: "Upon this principle, of an union of person in husband and wife, depend all the legal rights, duties and disabilities that either of them acquired by the marriage. I speak not, at present, of the rights of property, but of such as are merely personal. For this reason a man cannot grant any thing to his wife or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself." They were not allowed to give evidence against each other, mainly because of the union of person, for if they were admitted to be witnesses for each other they could contradict one maxim of the law, nemo in propria causa testis esse debet; and if against each other they would contradict another maxim, nemo tenetur se ipsum accusare.

Bertles v. Nunan, supra, 92 NY at 156-157.^[4]

As the Court of Appeals subsequently recognized in Hiles v. Fisher, 144 NY 306 (1895), the husband's common law right to full control of land held via tenancy by the entirety with his spouse is not incident to the concept of a tenancy by the entirety—which is governed by a principle of equality of estate as between husband and wife—but derives instead from "the general principle of the common law which vested in the husband jure uxoris the rents and profits of his wife's lands during their joint lives. (2 Kent Com. 130; Stewart on Husb. & Wife, §308)." See, id., 144 NY at 313-314. In other words, the common law doctrines of tenancy by the entirety and jure uxoris are conceptually distinct, such that with the legal demise of a husband's right to control his wife's property the Court of Appeals recognized, in Goldman v. Goldman, 95 NY2d 120 (2000), that "[a]s tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by property." Id., at 122. However, the ongoing evolution of married women's rights to property and otherwise, grounded in a recognition of the wife's separate legal identity, has over the course of time fundamentally altered the nature and legal incidents of the union of person in husband and wife in marriage upon which the tenancy by the entirety is founded.

In the 19th century, by a series of statutes including the Married Woman's Property Acts of 1848 (ch. 200), 1849 (ch. 375), 1860 (ch. 90), and 1862 (chs. 72 and 172), New York altered "the union of person in husband and wife" by:

• In 1848, "secur[ing] to married women the enjoyment of their real and personal property which belonged to them at the time of their marriage, or which they might thereafter acquire by gift, grant or bequest from third persons, and [ ] abrogate[ing] the common-law right of the husband in and to the real and personal property of the wife." See, Hiles v. Fisher, supra, 144 NY at 314. See also, Darby v. Callaghan, 16 NY 71, 75-76 (1857).

• In 1849, giving married women express authority "to grant or dispose of her property." See, Bertles v. Nunan, supra, 92 NY at 159. See also, Darby v. Callaghan, supra.

• In 1860, "empower[ing] a married woman to perform labor and to carry on business on her separate account; to enter into contracts in reference to her separate real estate; to sue and be sued in all matters having relation to her property, and to maintain actions for injuries to her person." See, Bertles v. Nunan, supra.

• In 1867, providing that "husband and wife could, in civil actions, be compelled to give evidence for or against each other." See, id., 92 NY at 160.

• In 1876, providing that "they could, in criminal proceedings, be witnesses for and against each other." See, id.

In each of those measures the State recognized the separate personhood of husband and wife as opposed to "the union of person in husband and wife" as described in Bertles v. Nunan, supra. This process continued apace until, in 1980, the U.S. Supreme Court could state that "[n]owhere in the common-law world—indeed in any modern society" is a woman denied "a separate legal identity." See, Trammel v. United States, 445 U.S 40, 52 (1980) (abrogating spouses' common law testimonial privilege). Since 1977, when Khan v. Khan was decided, courts have continued to draw out the implications of spouses' separate legal personhood. In 1984, for example, the Court of Appeals—observing that New York had long ago rejected the common law doctrine that a married woman's legal existence is "incorporated and consolidated into that of the husband" (see, 1 Blackstone's Commentaries [1966 ed.], p. 430)—abrogated the husband's "marital exemption" from liability for rape. See, People v. Liberta, 64 NY2d 152, 164 (1984).

This dilution of the legal fiction of the union of person in husband and wife in marriage set the stage for a wholesale revision post-Khan of New York matrimonial law, including the Equitable Distribution Law (1980), "No Fault" divorce (2010), and the Automatic Orders (2009). To those we now turn.

C. The Impact of the Equitable Distribution Law, "No Fault" Divorce, and the Automatic Orders

1. The Equitable Distribution Law

"Chapter 281 of the Laws of 1980, enacted on June 19, 1980, achieved a major and dramatic overhaul of the New York statutes which govern the economic life of the family and measure the rights and obligations of family members upon dissolution of the family unit . . . With the enactment of the Equitable Distribution Law, the marriage relationship [is] viewed, more modernly, as an economic partnership. `Upon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held.' (Governor's Memorandum of Approval, McKinney's 1980 Session Laws, p. 1863)." McKinney's Cons. Laws of NY, Vol. 14, DRL §236, Practice Commentaries (Scheinkman), p. 32 (2010).

Thus, the Equitable Distribution Law worked a sea-change in the legal status of the marital relationship. It defines the unity of husband and wife in marriage as consisting not in a "union of person" but rather in an "economic partnership"; and it relegates claims grounded in title to property to secondary status, providing instead for equitable distribution of the economic fruits of that partnership, that is, of what the statute calls "marital property":

The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action, regardless of the form in which title is held . . .

DRL §236B[1][c]. In other words, under the Equitable Distribution Law, that which constitutes the union of husband and wife in marriage—the economic partnership—is deemed to have ended upon commencement of a matrimonial action. Recalling Kahn, "anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate [i.e., the tenancy by the entirety] whose creation depended upon such unity." Kahn, 43 NY2d at 207 (quoting Stelz v. Shreck, supra, 128 NY at 267). Commencement of a matrimonial action terminates the legal fiction of unity as defined by the Equitable Distribution Law. When the prevailing legal framework has so radically changed, why should ancient concepts of title continue to prevent a pendente lite court-ordered sale of marital premises to advance the goals of the Equitable Distribution Law? Per Khan itself, the continuing viability of a tenancy by the entirety post-commencement is seriously in question.

2. "No Fault" Divorce

The seeds of "no fault" divorce were first planted in New York in 1966. Upon a legislative determination that "dead marriages . . . should be terminated for the mutual protection and well being of the parties and, in most instances, their children," DRL §170 was amended to provide for "no-fault" dissolution of marriage upon the parties' living apart for a prescribed period pursuant to an agreement or a judgment of separation. See, Covington v. Walker, 3 NY3d 287, 290 (2004) (quoting 1966 Report of the Joint Leg. Comm. on Matrimonial and Family Laws); Gleason v. Gleason, 26 NY2d 28, 39 (1970); DRL §170, subd. 5 and 6. Although permitting divorce on a "no fault" basis, the 1966 reform respected the unity of spouses in marriage, as it required either (1) the agreement of both spouses that their marriage was no longer viable, and/or (2) objective evidence, i.e., the parties' living apart for a substantial period of time without reconciling, that the marriage was truly dead. This was the legal framework in place in 1977, when Khan v. Khan was decided.

On this score, too, a post-Khan sea-change in the law has occurred. In 2010, DRL §170 was again amended to provide for "no fault" dissolution of marriage where:

7. The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

The plaintiff spouse's averment to an "irretrievable breakdown" is uncontestable and establishes the cause of action for divorce as a matter of law. See, Hoffer-Adou v. Adou, 121 AD3d 618, 619 (1st Dept. 2014); Palermo v. Palermo, 35 Misc 3d 1211(A) (Sup. Ct. Monroe Co. 2011), aff'd 100 AD3d 1453 (4th Dept. 2012).

The unity of spouses in marriage is brittle indeed if one spouse may unilaterally and by unchallengeable fiat declare that the marriage is at an end. In the absence of any defense to a DRL §170(7) cause of action, divorce is essentially automatic. Here, the Complaint contains the requisite assertion of irretrievable breakdown (NYSCEF Doc. # 2), and despite Defendant's denial thereof his counterclaim contains the exact same allegation (NYSCEF Doc. # 7, ¶ 4), which Plaintiff admitted in her Reply (NYSCEF Doc. # 79 ¶1). The parties have stipulated that grounds for divorce are resolved and that Plaintiff shall obtain a "no fault" divorce pursuant to DRL §170(7) (Preliminary Conference Stipulation, NYSCEF Doc. # 19, p.2). The divorce is all but inevitable, and the entry of a judgment of divorce pursuant to DRL §170(7) is a formality. Once again recalling Kahn, "anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate [i.e., the tenancy by the entirety] whose creation depended upon such unity." Kahn, 43 NY2d at 207. The legal fiction of unity as defined by the Equitable Distribution Law having been shattered by commencement of a matrimonial action, and one party's uncontestable declaration that an irretrievable breakdown has occurred having rendered the marriage "dead" in the eyes of the "No Fault" divorce law and the divorce inevitable, the reasoning of Khan itself dictates that a tenancy by the entirety is at this juncture no longer viable.

On a further note, as the Court of Appeals observed in Kahn, a formal dissolution of the marriage bond is not necessarily required before a tenancy by the entirety may be severed: the Court acknowledged that a decree of separation was sufficient, all the while recognizing that "a separation decree does not dissolve the marriage." See id., 43 NY2d at 207. In other contexts, formal entry of judgment of divorce has been reduced to a ministerial act with no practical consequence on property rights. See, Cornell v. Cornell, 7 NY2d 164, 171 (1959) (permitting entry of divorce nunc pro tunc so long as rights vested in the interim are not affected). See also, Lynch v. Lynch, 13 NY2d 615 (1963); Brown v. Brown, 208 AD2d 485 (2d Dept. 1994); Van Pelt v. Van Pelt, 172 AD2d 659 (2d Dept. 1991). To be sure, the entry of judgment pursuant to DRL §170(7) may not be regarded as a pure formality, as the statute itself provides that judgment may not be granted on the grounds of "irretrievable breakdown" unless and until issues of equitable distribution, maintenance, child custody and visitation, child support, and counsel and expert fees have been resolved by the parties or determined by the court and incorporated in the judgment. See, id. Cf., Matter of Forgione, 237 AD2d 438 (2d Dept. 1997). The conclusion nevertheless obtains that, the parties having commenced divorce proceedings and stipulated to a "No Fault" divorce—thereby eviscerating the unity of person in husband and wife in marriage underlying a tenancy by the entirety, there would appear to be no reason to delay a legal severance of the tenancy where a balancing of the equities would dictate a sale of the marital residence pendente lite to avoid financial hardship for the family and/or to preserve marital assets for equitable distribution.

A few New York courts have already reached that very conclusion. See, D.R.D. v. J.D.D., supra, 74 Misc 3d 237 (Sup. Ct. Monroe Co. 2021); Stratton v. Stratton, 39 Misc 3d 1230(A) (Sup. Ct. Sullivan Co. 2013); St. Angelo v. St. Angelo, 130 Misc 2d 583 (Sup. Ct. Suffolk Co. 1985). For reasons shown above, this Court concurs with Justice Dollinger in D.R.D. v. J.D.D., supra, that "the facts underlying and justifying the decision in Kahn v. Kahn, are significantly undercut by the enactment of equitable distribution and no-fault divorce under [DRL] Section 170(7)." Id., 74 Misc 3d at 246. Justice Dollinger nevertheless struggled to evade the impact of Khan. He wrote:

[C]ontinued adherence to the Court of Appeals' directive in Khan v. Khan exposes an anomaly in New York marital law. Under Kahn v. Kahn, a trial court cannot balance the equities of all the family—children included—in deciding whether to sell the marital residence while a no-fault divorce is pending but the same court can balance the same equities in deciding exclusive use and possession of the property during the pendency^[5] and can apply the same equitable factors in the judgment of divorce or any post-judgment decision.^[6] It is illogical that the New York trial courts would have broad powers to balance the equities of a family to decide possession of property during a divorce, ownership of the property after the divorce but not have the power, when balancing the same equities, to order a sale during the pendency of the divorce. The equitable factors in play during the divorce—the cost of maintaining and staying in the house, the financial strain on either spouse or the family overall, the impact of mortgage and tax costs, the income tax consequences of keeping the house and who gets the tax benefits, the consequences to and need for stability for the children, the availability of reasonable alternative housing for any displaced spouse—are the same factors that New York matrimonial courts have weighed in the four decades since equitable distribution. Rather than straining to find an agreement in a long-delayed divorce—the case in Taglioni v. Garcia^[7] —or await a ruinous foreclosure—the case in A.P. v. F.L.^[8] —or pump family resources into a residence that is underwater and draining family finances—the case in this instance—New York matrimonial courts should have the power to balance the equities of a potential sale during the pendency of a no-fault divorce. This Court is not suggesting that the sluice gates for sales of marital property pendente lite be opened willy-nilly but, because the Legislature vested broad equitable powers to matrimonial judges under equitable distribution, those powers should permit a sale of a marital residence during the pendency if a balancing of well-known and often easily defined equities favor that result in the best interests of the family.

D.R.D. v. J.D.D., supra, 74 Misc 3d at 253-254.

This Court concurs with Justice Dollinger's analysis, so far as it goes, but further believes that his conclusion that a matrimonial court is empowered despite Khan to order the pendente lite sale of the marital home is substantially bolstered by the post-Khan enactment of the Automatic Orders in 2009. To that we now turn.

3. The Automatic Orders

In 2009, the Equitable Distribution Law was amended to incorporate "Automatic Orders" regulating the disposition of matrimonial litigants' property pendente lite. See, DRL §236B(2)(b)(1-5). Prior to 2009, the matrimonial court's authority to deal with property during the course of divorce proceedings and prior to judgment was located in DRL §234, which, per Khan v. Khan, does not permit the severance of a tenancy by the entirety pendente lite. See id., 43 NY2d at 208-210. In the pre-Equitable Distribution era this reading of DRL §234 served a salutary purpose. Husbands typically had a significant economic advantage over non-working wives, maintenance and child support guidelines did not exist, and the pre-judgment sale of a marital residence held by the spouses as tenants by the entirety could seriously jeopardize the economic security and well-being of the wife and children.

However, with the advent of the Equitable Distribution Law, as Judge Scheinkman has pointed out, the Automatic Orders have effectively superseded DRL §234: "the key statutory provision is no longer Section 234, the general authority for the matrimonial court to deal with property, but in the Equitable Distribution Law itself." See, McKinney's Cons. Laws of NY, Vol. 14, DRL §236, Practice Commentaries (Scheinkman), C236B:48, p. 328 (2010). The Automatic Orders impose serious restraints on the parties' pendente lite disposition of property so as "to prevent both parties from dissipating assets, [and] incurring unreasonable debts" (see, Memorandum in Support of Legislation). By the same token, the Orders afford the matrimonial court enhanced flexibility to deal with property prior to judgment to address those same issues and to promote the purposes of the Equitable Distribution Law. DRL §236B(2)(b)(1) provides:

Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real property, cash accounts, stocks, mutual funds, bank accounts cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.

While framed in the negative as a restriction on the parties, Section 236B(2)(b)(1) plainly contemplates the admissibility of a court order directing the sale pendente lite of real property jointly held by the spouses. The Legislature was presumably aware of Kahn v. Kahn when it enacted the Automatic Orders in 2009 yet did not exempt tenancies by the entirety and indeed placed no restriction on the kinds of estates in real property potentially subject to court-ordered sale pursuant to Section 236B(2)(b)(1). To construe the Automatic Orders as a liberation from the constraints of Kahn v. Kahn would assist the matrimonial court in mitigating the financial exigencies encountered by families enmeshed in divorce litigation, often for a period of years, and promote the salutary goals of the Equitable Distribution Law.

In this case, the mortgage on the marital residence is not being paid and if matters are allowed simply to take their course a foreclosure and the loss of whatever equity the parties may have in their home is inevitable. A sale pendente lite is needed to prevent the ongoing dissipation of assets and accumulation of unreasonable debt, and to preserve marital property—the equity in the home—for equitable distribution. The Court has the authority to determine whether the terms of a proposed sale are appropriate, to direct the disposition of the proceeds of sale in the best interest of the parties, and to take steps to alleviate any hardship resulting from the pre-judgment severance of the tenancy by the entirety and loss of the marital home.

D. Conclusion

The Court invokes its authority under DRL §236B(2)(b)(1) and orders a sale of the marital residence based on the circumstances presented and the needs of the parties. The property shall be listed for sale with a broker who participates in a Multiple Listing Service, and the parties shall accept any offer within ten (10%) percent of the asking price. Both parties shall cooperate with the broker and the house shall be maintained as ready for sale. The net proceeds of sale, after payment of the usual and customary expenses and closing costs, shall be escrowed pending further order of the Court.

In view of Kahn v. Kahn the Court does not adopt this course of action lightly. However, inasmuch as the exigencies as they exist militate strongly in favor of a prompt sale, the Court declines to stay its Decision and Order pending application, if any, to the Appellate Division.

IT IS SO ORDERED.

[1] It must be stressed from the outset that the Court addresses itself only to the "legal fiction" of the union of person in husband and wife in marriage.

[2] Although the Loan Modification required an acceptance on or before a specific date, now passed, the Court was advised that the deadline had been extended. The Court in any event does not view the issue as moot as it is readily capable of repetition.

[3] The moving papers do not explain how the unemployed Defendant, who owes arrears in child support and maintenance, will be able to pay $5,441.36 per month, nor is there any explanation why a bank would enter into a loan agreement with a borrower without apparent means to repay. The Court declines to speculate, but notes that while the motion has been sub judice Defendant became employed at an annual salary of $150,000. He recently submitted a projected net income for 2024 of $114,139, and projected expenses for 2024 of $106,774 exclusive of income or property taxes. It remains improbable that he could carry the proposed mortgage.

[4] Sir William Blackstone cited a 15th century definition of tenancy by the entirety from Sir Thomas Littleton:

[I]f and estate be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety per tout et non per my [by the whole and not by a share, moiety, or divisible part]; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.

2 William Blackstone, Commentaries on the Laws of England 181 (1765), quoted in Richard R. Powell, The Law of Real Property ¶620 (1991).

[5] Pursuant to DRL §§ 234 and 236B(5)(f), the court is specifically authorized to direct the use and occupancy of the marital home pendente lite "without regard to the form of ownership of such property."

[6] Pursuant to DRL §236B(5)(a, c, d), the court is specifically authorized to distribute marital property (including the marital home) equitably between the parties and to provide for the disposition thereof in the final judgment.

[7] 200 AD3d 44 (1st Dept. 2021).

[8] 57 Misc 3d 1223(A) (Sup. Ct. Queens Co. 2017)."

DIVISION SPLIT ON PRIVATE CAUSE OF ACTION UNDER LABOR LAW 198

Grant v. GLOBAL AIRCRAFT DISPATCH, INC., 2024 NY Slip Op 183 - NY: Appellate Div., 2nd Dept. 2024:

"In Vega v CM & Assoc. Constr. Mgt., LLC (175 AD3d 1144), the Appellate Division, First Department, considered the question now before this Court—whether Labor Law § 198(1-a) expressly provides a private right of action for a manual worker paid on a biweekly basis in violation of Labor Law § 191(1)(a) to recover liquidated damages, interest, and attorneys' fees. The First Department determined that such a private right of action exists, concluding that the "wage claim[s]" to which section 198 refers include not only instances of nonpayment or partial payment of wages, but also late payment of wages (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145-1146). The First Department reasoned that "[t]he moment that an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required," thereby permitting recovery for underpayment under section 198(1-a) (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145). The First Department, as the plaintiff does here, equated the biweekly pay schedule with a violation and cure, the cure serving merely as an affirmative defense, which could not "eviscerate the employee's statutory remedies" (id.).

We respectfully disagree with the reasoning of Vega and decline to follow it. The plain language of Labor Law § 198(1-a) supports the conclusion that this statute is addressed to nonpayment and underpayment of wages, as distinct from the frequency of payment (see Gutierrez v Bactolac Pharm., Inc., 210 AD3d 746, 747), and we do not agree that payment of full wages on the regular biweekly payday constitutes nonpayment or underpayment.

The first sentence of Labor Law § 198(1-a) refers to an employee being "paid less than the wage to which he or she is entitled" (emphasis added). "Wages" is defined as "the earnings of an employee for labor or services rendered" (id. § 190[1]). The natural import of this phrase, as well as the later, related reference to an employee recovering "the full amount of any underpayment" (id. § 198[1-a] [emphasis added]), is that an employee has received a lesser amount of earnings than agreed upon, not that the employee received the agreed-upon amount one week later, on the regular payday.

Moreover, acknowledging that he was paid his wages in full, the plaintiff here seeks only liquidated damages (as well as interest and attorneys' fees). However, section 198(1-a) provides for liquidated damages as an "additional amount," clearly contemplating recovery of an underpayment as the primary, foundational remedy. In other words, under the statute as written, the recovery of liquidated damages is dependent upon the recovery of an underpayment. Thus, absent an underpayment or nonpayment, liquidated damages are not available. While we agree with the proposition set forth by our dissenting colleague that "[m]oney later is not the same as money now" (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC] [internal quotation marks omitted]), or, in other words, that late payment is injurious to workers, we nevertheless are bound to "give effect to the plain meaning of [the] words used" in the statute and may not "legislate under the guise of interpretation" (People v Finnegan, 85 NY2d 53, 58 [internal quotation marks omitted]).

The First Department's reasoning that the "moment an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145), seems to be based upon the premise that a payment was due after the first week of the biweekly pay period and that the employer therefore failed to pay the wages due after that first week. However, where an employer uses a regular biweekly pay schedule, that employer's payment of wages is due, under the employment agreement between the employer and an employee, every two weeks. Such an agreed-upon pay schedule between an employer and a manual worker violates the frequency of payments requirement (see Labor Law § 191[2]), but is not equivalent, in our view, with a nonpayment or underpayment of wages subject to collection with an additional assessment of liquidated damages. The employer's payment of full wages on the regular payday is crucial and distinguishes this case from federal cases under the Fair Labor Standards Act in which courts have concluded that employers were liable for liquidated damages for violating the prompt payment requirement implied in that law by, for example, paying overtime compensation two years after it was earned (see Brooklyn Savings Bank v O'Neil, 324 US 697, 700, 707-708), or failing to pay on the regular payday (see Biggs v Wilson, 1 F3d 1537, 1538 [9th Cir]; cf. Rogers v City of Troy, N.Y., 148 F3d 52, 55-57 [2d Cir]).

As to the string of federal cases relied upon by our dissenting colleague to support the conclusion that Labor Law § 198(1-a) provides an express private right of action for a violation of section 191, those cases merely adopted the holding of Vega as the only appellate-level state law on point (see e.g. Georgiou v Harmon Stores, Inc., 2023 WL 112805, *6, 2022 US Dist LEXIS 234643, *14; Confusione v Autozoners, LLC, 2022 WL 17585879, 2022 US Dist LEXIS 223438 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311, *1, 2022 US Dist LEXIS 53492, *3 [ND NY, No. 1:20-cv-00591] ["As a federal court applying state law, we are generally obliged to follow the state law decisions of state intermediate appellate courts . . . in the absence of any contrary New York authority or other persuasive data establishing that the highest court of the state would decide otherwise" (internal quotation marks omitted)]). Thus, these federal decisions provide little substantive support for the reasoning and determination set forth in Vega. Indeed, while concluding that they were bound to adopt Vega, some of these courts expressed doubt as to the correctness of that decision (see Georgiou v Harmon Stores, Inc., 2023 WL 112805, *4-6, 2022 US Dist LEXIS 234643, *10-14; Espinal v Sephora USA, Inc., 2022 WL 16973328, *5-6, 2022 US Dist LEXIS 208400, *11-14 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], report and recommendation adopted by 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]; Harris v Old Navy, LLC, 2022 WL 16941712, *7, 2022 US Dist LEXIS 206664, *18 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], report and recommendation adopted by 2023 WL 2139688, 2023 US Dist LEXIS 28419 [SD NY, No. 1:21-cv-9946-GHW]).

Notably, after the First Department decided Vega, the Court of Appeals decided Konkur v Utica Academy of Science Charter Sch. (38 NY3d 38), in which it declined to conclude that an employer's violation of the prohibition against requesting or demanding a "return, donation or contribution" of any part of an employees' wages (i.e., kickbacks) (Labor Law § 198-b[2]) constituted a wage claim within the meaning of Labor Law § 198(1-a) (see Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 44). Thus, the mere fact that a violation of the Labor Law had the effect of reducing employees' wages (even permanently) did not bring that Labor Law violation under the auspices of Labor Law § 198(1-a), which covers nonpayment and partial payment of wages.^[1]

Interpreting Labor Law § 198(1-a) as covering nonpayment and partial payment of wages, as distinct from the frequency-of-pay violation alleged here, is consonant with its legislative history. Subdivision 1 of section 198—permitting an additional award of costs, above ordinary costs, in an action instituted upon a wage claim by an employee or the Commissioner—was added in 1937, along with provisions allowing employees to assign wage claims to the Commissioner (see L 1937, ch 500). The legislation was aimed at easing the burden on and expense to employees (as well as the Legal Aid Society, which often represented them) of instituting actions to collect on small wage claims (see Letter from George Lion Cohen, Bill Jacket, L 1937, ch 500 at 4-5). It essentially empowered the Commissioner to take assignment of private causes of action (alleging breach of contract) already possessed by the employees, not created by statute.

In 1967, section 1-a was added, allowing an employee or the Commissioner to obtain reasonable attorneys' fees in wage collection actions and requiring employers to pay an additional amount of liquidated damages if the employer's failure to pay the wage was willful (see L 1967, ch 310). As explained at the time of its enactment: "A failure or refusal to pay any employee his wages and to put him to the trouble of hiring an attorney to pursue the payment of wages or to impose upon the public to pursue this type of claim through the courts is action that can only merit public condemnation" (Rep of Comm on Labor Law, Bill Jacket, L 1967, ch 310 at 10). The fact that recovery was limited to "the amount of such underpayment," without liquidated damages, was deemed to have encouraged employers "to violate the statute in the expectation that if they [were] caught, their sole obligation [would] be to pay the back wages without interest" (Mem of Industrial Commissioner, Bill Jacket, L 1967, ch 310 at 4).

The willfulness requirement for liquidated damages was replaced in 2009 so as to place the burden upon employers to show good faith, and the Commissioner was given the authority "to bring a court action or administrative proceeding to collect wage underpayments" (Assembly Mem in Support, Bill Jacket, L 2009, ch 372 at 5). The purpose of those amendments was to benefit "low-wage workers struggling to support their families on the minimum wage" in the "many cases" in which "employers [had] failed for years to pay even the well-publicized minimum wage rate" (id. at 6). Finally, Labor Law § 198(1-a) was further amended in 2010, as part of the Wage Theft Prevention Act, to increase the amount of liquidated damages and to require courts to allow employees "to recover the full amount of any underpayment" (L 2010, ch 564, § 7). The bill was necessary, the New York State Department of Labor explained, because "[c]urrent penalties for wage theft [were] so low that there [was] a financial incentive to underpay workers . . . [,] creat[ing] an environment in which a large number of employees in the state [were] earning less than minimum wage . . . while others [were] paid less than their agreed-upon wage" (Letter from NY St Dept of Labor, Bill Jacket, L 2010, ch 564 at 9).

In sum, this legislative history reveals that Labor Law § 198(1-a) was aimed at remedying employers' failure to pay the amount of wages required by contract or law. There is no reference in the legislative history of Labor Law § 198 to the frequency or timing of wage payments, and nothing to suggest that the statute was meant to address circumstances in which an employer pays full wages pursuant to an agreed-upon, biweekly pay schedule that nevertheless does not conform to the frequency of payments provision of law.

Accordingly, we conclude that Labor Law § 198 does not expressly provide for a private right of action to recover liquidated damages, prejudgment interest, and attorneys' fees where a manual worker is paid all of his or her wages biweekly, rather than weekly, in violation of Labor Law § 191(1)(a).

To the extent that the plaintiff contends that such a private right of action should be implied, we reject that contention. A private right of action cannot be implied from the statutory provisions and their legislative history unless, among other factors, "creation of such a right would be consistent with the legislative scheme" (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 41 [internal quotation marks omitted]). In Konkur, the Court of Appeals concluded that a private right of action to recover damages for a violation of Labor Law § 198-b, prohibiting kickbacks, could not be implied because the statutory scheme "expressly provide[d] two robust enforcement mechanisms, `indicating that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted'" (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 43, quoting Cruz v TD Bank, N.A., 22 NY3d 61, 71). In other words, the Court determined that, "in the face of significant enforcement mechanisms provided for in the statute," a private right of action would not be consistent with the legislative scheme (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 42). Since multiple official enforcement mechanisms for violations of Labor Law § 191 are similarly provided, we conclude that, under Konkur, a private right of action cannot be implied (see Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 43).

Consequently, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the first cause of action.

In light of our determination, we need not reach the parties' remaining contentions.

IANNACCI, J.P., CHAMBERS and WARHIT, JJ., concur.

CHRISTOPHER, J., concurs in part and dissents in part, and votes to modify the order, on the law, by deleting the provision thereof granting those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted by the plaintiff individually and so much of the first cause of action as sought to recover interest on behalf of others similarly situated, and substituting therefor a provision denying those branches of the motion, and, as so modified, to affirm the order insofar as appealed from, with the following memorandum:

I respectfully disagree with the conclusions reached by my colleagues in the majority to affirm the order insofar as appealed from. In my view, that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted by the plaintiff individually should have been denied, as Labor Law § 198(1-a) expressly provides a private right of action for a violation of Labor Law § 191, which right may also be implied.

Labor Law § 191, entitled "Frequency of payments," provides, in pertinent part, that "[a] manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned" (id. § 191[1][a][i]). Labor Law § 198(1-a) provides that: "In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due" (emphasis added).

This appeal presents the question of whether Labor Law § 198(1-a) expressly provides a private right of action for a manual worker paid on a biweekly basis in violation of Labor Law § 191(1)(a) to recover liquidated damages, interest, and attorneys' fees. The Appellate Division, First Department, considered this question in Vega v CM & Assoc. Constr. Mgt., LLC (175 AD3d 1144) and concluded that such a private right of action exists, and that the actionable "wage claim[s]" to which Labor Law § 198 refers include not only instances of nonpayment or partial payment of wages, but also the late payment of wages (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145-1146). The First Department determined that, contrary to the defendant employer's argument that Labor Law § 198 provides remedies only in the event of nonpayment or partial payment of wages, "the plain language of [Labor Law § 198(1-a)] indicates that individuals may bring suit for any `wage claim' against an employer" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145). Further, the First Department concluded that "[t]he remedies provided by section 198(1-a) apply to violations of article 6, and section 191(1)(a) is a part of article 6" (id. [citation and internal quotation marks omitted]).

The Vega court reasoned that "[t]he moment that an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required" (id.). Thus, "the term underpayment [in section 198(1-a)] encompasses the instances where an employer violates the frequency requirements of section 191(1)(a) but pays all wages due before the commencement of an action" (id.). Further, an employer may not attempt "to cure a violation and evade the statute by paying the wages that are due before the commencement of an action" (id.). While an "employer may assert an affirmative defense of payment if there are no wages for the `employee to recover' (Labor Law § 198[1-a])," the fact that an employee was paid all the wages he or she earned "does not eviscerate the employee's statutory remedies" (id.).

The majority declines to follow the Vega decision and determines that Labor Law § 198 does not expressly provide a right of action for a violation of Labor Law § 191(1)(a). Contrary to the Vega decision, the majority reasons that where an employer uses a regular biweekly pay schedule, such an agreed-upon pay schedule between an employer and a manual worker violates the frequency of payments requirement under Labor Law § 191(2), but is not equivalent to a nonpayment or underpayment of wages permitting recovery under Labor Law § 198(1-a).

I respectfully disagree. In my view, the late payment of wages is tantamount to a nonpayment or underpayment of wages, which permits recovery under Labor Law § 198(1-a). "`Money later is not the same as money now'" (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC], quoting Stephens v U.S. Airways Group, Inc., 644 F3d 437, 442 [DC Cir, Kavanaugh, J., concurring]). "The delay in receiving wages stripped [the] plaintiff[ ] of the opportunity to use funds to which [he was] legally entitled resulting in an injury sufficiently analogous to harms traditionally recognized at common law" (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *1, 2022 US Dist LEXIS 234643, *3 [internal quotation marks omitted]). "Not having money you're supposed to have means that the time value of money has decreased" (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *2, 2022 US Dist LEXIS 234643, *4).

To the extent that the majority cites to this Court's decision in Gutierrez v Bactolac Pharm., Inc. (210 AD3d 746) to support the conclusion that Labor Law § 198(1-a) is addressed to nonpayment and underpayment of wages, as distinct from the frequency of payment, such reliance is misplaced. In Gutierrez, this Court affirmed so much of an order as directed dismissal of a cause of action alleging violations of Labor Law § 191, wherein the plaintiff was not claiming a violation regarding frequency of pay, but rather was seeking to recover damages for unpaid wages. Gutierrez did not determine that a violation of Labor Law § 191(1)(a) does not result in unpaid wages or underpaid wages for purposes of whether a private right of action exists under Labor Law § 198(1-a).

The majority also relies upon the Court of Appeals' decision in Konkur v Utica Academy of Science Charter Sch. (38 NY3d 38) to support its conclusion that Labor Law § 198(1-a) does not expressly provide for a private right of action for a violation of Labor Law § 191. In Konkur, the Court of Appeals held that a private right of action was unavailable for Labor Law § 198-b claims concerning wage kickbacks. The Court found that the statute did not provide an express private right of action, and "no such freestanding private right of action was intended by the legislature" (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 39). The majority deduces from Konkur that "the mere fact that a violation of the Labor Law had the effect of reducing employees' wages (even permanently) did not bring that Labor Law violation under the auspices of Labor Law § 198(1-a), which covers nonpayment and partial payment of wages."

I find instructive the reasoning in several federal decisions. "Although the reasoning of Konkur does echo issues raised" in the instant case, Konkur involved a different and unrelated statute (Espinal v Sephora USA, Inc., 2022 WL 16973328, *9, 2022 US Dist LEXIS 208400, *22 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], report and recommendation adopted by 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]). "On its face, Konkur does not stand for the propositions that the late payment of wages is not the underpayment of wages, or that the late payment of wages is not a wage claim privately actionable under Section 198(1-a). Thus, Konkur does not directly contradict the Vega Court's determination that the late payment of wages is an underpayment of wages" (Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311, *6, 2022 US Dist LEXIS 53492, *17 [ND NY, No. 1:20-cv-00591]; see Rosario v Icon Burger Acquisition LLC, 2022 WL 17553319, *5, 2022 US Dist LEXIS 222321, *11-12 [ED NY, No. 21-CV-4313 (JS) (ST)]).

Following the Court of Appeals' decision in Konkur, many federal district courts have addressed the instant issue of whether Labor Law § 198(1-a) provides a private right of action for a violation of Labor Law § 191. These courts have considered Vega in light of Konkur, but have adopted Vega's determination that the late payment of wages constitutes an underpayment of wages, and that Labor Law § 198(1-a) provides a private right of action for violations of Labor Law § 191 (see Georgiou v Harmon Stores, Inc., 2023 WL 112805, *2-6, 2022 US Dist LEXIS 234643, *5-14; Confusione v Autozoners, LLC, 2022 WL 17585879, *1, 2022 US Dist LEXIS 223438, *3-4 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; Rosario v Icon Burger Acquisition LLC, 2022 WL 17553319, *4-5, 2022 US Dist LEXIS 222321, *10-15; Day v Tractor Supply Co., 2022 WL 19078129, *4-7, 2022 US Dist LEXIS 217201, *10-19 [WD NY, No. 22-CV-489-JLS-MJR], report and recommendation adopted by 2023 WL 2560907, 2023 US Dist LEXIS 45489 [WD NY, No. 22-CV-489 (JLS) (MJR)]; Rath v Jo-Ann Stores, LLC, 2022 WL 17324842, *3-8, 2022 US Dist LEXIS 214798, *6-19 [WD NY, No. 21-CV-791S]; Espinal v Sephora USA, Inc., 2022 WL 16973328, *5-9, 2022 US Dist LEXIS 208400, *11-23; Harris v Old Navy, LLC, 2022 WL 16941712, *5-10, 2022 US Dist LEXIS 206664, *14-27 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], report and recommendation adopted by 2023 WL 2139688, 2023 US Dist LEXIS [SD NY, No. 1:21-cv-9946-GHW]; Levy v Endeavor Air Inc., 638 F Supp 3d 324, 331-332 [ED NY]; Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311, *8, 2022 US Dist LEXIS 53492, *20).

The majority also concludes that a private right of action under Labor Law § 198(1-a) may not be implied because "multiple official enforcement mechanisms for violations of Labor Law § 191 are [already] provided" for. The majority further cites to Konkur to support this conclusion. However, I conclude, as Justice Rivera opined in her dissenting opinion in Konkur regarding Labor Law § 198-b, that in the instant matter, the fact that other enforcement mechanisms are available to the plaintiff for violations of Labor Law § 191 "does not mean that the legislature foreclosed a private right of action [for this section] or that recognizing such a right would be at odds with the statutory scheme" (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 52 [Rivera, J., dissenting]).

In my view, just as the First Department concluded in Vega, even if Labor Law § 198 does not expressly authorize a private right of action for a violation of the requirements of Labor Law § 191, a remedy may be implied, as the "plaintiff is one of the class for whose particular benefit the statute was enacted, the recognition of a private right of action would promote the legislative purpose of the statute and the creation of such a right would be consistent with the legislative scheme" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146). The plaintiff is a "manual worker," as defined by the statute, and allowing him to bring suit would promote the legislative purpose of section 191, which is to protect workers who are generally "dependent upon their wages for sustenance" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146 [internal quotation marks omitted]; see People v Vetri, 309 NY 401, 405), and section 198, "which was enacted to deter abuses and violations of the labor laws" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146; see P & L Group v Garfinkel, 150 AD2d 663, 664). The creation of such a right would also be consistent with the legislative scheme, as section 198 "explicitly provides that individuals may bring suit against an employer for violations of the labor laws, even if the Commissioner chooses not to do so" (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1147; see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 15).

Accordingly, I respectfully disagree with my colleagues in the majority, and would determine that Labor Law § 198(1-a) provides a private right of action for a violation of Labor Law § 191, and, in addition, a private right of action may also be implied (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146-1147).

Although the majority did not reach the issue of whether the plaintiff can seek liquidated damages on behalf of the putative class members, in my view, he cannot. Pursuant to CPLR 901(b), "[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action." Liquidated damages have been viewed as a penalty (see Carter v Frito-Lay, Inc., 74 AD2d 550, 551, affd 52 NY2d 994; see also Griffin v Gregorys Coffee Mgt. LLC, 2019 NY Slip Op 31125[U] [Sup Ct, NY County]), and Labor Law § 198(1-a) does not specifically authorize that liquidated damages are recoverable in a class action. Accordingly, I would conclude that while the plaintiff is entitled to proceed on his claim for liquidated damages in his individual capacity, pursuant to CPLR 901(b), he may not seek to recover liquidated damages on behalf of the putative class members, although he may seek to recover interest on behalf of the putative class members (see id.; see generally Borden v 400 E. 55th St. Assoc., L.P., 24 NY3d 382, 397; Brown v Mahdessian, 206 AD3d 511, 511).

[1] We recognize that the federal case law cited in the preceding paragraph determined that Konkur did not abrogate Vega's determination regarding an express private right of action (see e.g. Georgiou v Harmon Stores, Inc., 2023 WL 112805, *4-6, 2022 US Dist LEXIS 234643, *10-14). We do not suggest otherwise, as Konkur concerned an implied private right of action under a different provision of the Labor Law. Rather, we conclude that Konkur raises doubt as to the reasoning underlying the First Department's decision in Vega, in the manner just described."